De Foe v. People

• Decision Date: 10 January 1871
• Citation: 22 Mich. 224
• Court: Michigan Supreme Court
• Parties: Jacob DeFoe v. The People

22 Mich. 224

Jacob DeFoe v. The People

Supreme Court of Michigan

January 10, 1871

Heard January 4, 1871

Error to Eaton circuit.

Judgment reversed, and a new trial awarded.

Shaw & Pennington, for plaintiff in error.

Dwight May, attorney-general, and W. M. Brown, for defendants in error.

OPINION

Christiancy J.:

The charge in the information was of an assault with intent to commit a rape. The prosecutrix gave evidence tending to show an assault with the intent charged, bye the defendant, who was a physician, and that it took place in his room or office while, as such physician, he was treating her arm for some malady for which she had several times before been treated by him at the same place.

Her evidence was not confirmed by that of any other witness as to any of the more important facts going to establish the truth of the charge; but was contradicted as to several important circumstances by other witnesses.

The defendant on the trial, as permitted by the statute, made a statement in his own behalf, of the facts and circumstances on the occasion alluded to by the prosecutrix, as he claimed them to be. This, as stated in the bill of exceptions, was so far as material to be noticed here, as follows: "And defendant's counsel further gave in evidence, by the statement of the defendant in said cause, that all the allegations of the prosecutrix were false and untrue," and "that he never insulted her in his life."

The court, in his charge to the jury, after some comments upon the defendant's statement, which are admitted to have been fair and correct, added the following, which is complained of as erroneous: "The statement of defendant does not, however, directly deny the assault. This silence would go far to confirm the testimony of the complainant."

If, as we are bound to assume, the bill of exceptions correctly sets forth the defendant's "statement," and its effect, that "all the allegations of the prosecutrix were false and untrue," and that "he never insulted her in his life," then this part of the charge was certainly erroneous, in assuming as a fact what the bill of exceptions shows not to have been as thus assumed.

The direct denial that "he had ever insulted her in his life," must certainly be regarded in the connection in which it is found and with reference to her testimony, as a direct denial of the assault which her testimony tended to prove. And if his statement...